Whitecar v. Supreme Castle Knights of Golden Eagle

Opinion by Orlady, J., The appellant admits that the questions raised by this appeal are purely technical. The summons was regularly served on August 22, 1900, and after a rule to amend the statement and another rule to strike off a plea in abatement had been made absolute, a judgment, for want of an affidavit of defense, was entered on October 15. A writ of fi. fa. was issued on January 29, 1901, and on February 5, a petition for a rule to stay execution, to open the judgment and let defendant into a defense was presented, which rule was discharged on February 25, and from this order the appeal is taken. The plaintiff’s affidavit which was filed in answer to the last rule discloses sufficient reason for the action of the court. The application under the Act of May 20, 1891, P. L. 101, giving a right of appeal from orders opening, vacating, or striking off, etc., “ judgments of any kind whether entered by amicable confession, upon warrant of attorney, or otherwise,” is an equitable proceeding addressed to the discretion of the court. The judge to whom the application is addressed acts as a chancellor and the appellate courts will examine the record- only to [635] determine whether his discretion has been properly exercised : Kelber v. Pittsburg Nat. Plow Company, 146 Pa. 485; Smith v. Times Publishing Co., 178 Pa. 481; Stephan v. Hudock, 4 Pa. Superior Ct. 474; O’Brien v. Sylvester, 12 Pa. Superior Ct. 408; Rehm v. Frank, 16 Pa. Superior Ct. 175. No abuse of discretion is shown in the refusal of the court to stay the fi. fa. and open the judgment so as to let the defendant into a defense so tardily asserted. The judgment is affirmed.